Property owners have a duty to keep their premises safe and secure, and to protect visitors from slipping hazards. One of the key defenses available to property owners in premises liability actions is that they lacked notice of the slippery condition because it occurred and injured the plaintiff before the defendant had a reasonable opportunity to discover and correct it.

In Sada v August Wilson Theater , the plaintiff was injured after he slipped and fell on a wet staircase. There had been one inch of snow that day.  The plaintiff testified that he observed a soaked mat near the theater door when he first arrived. He specifically told an usher during intermission that the mat was wet and that the usher should do something about it. Plaintiff fell on a wet area near the mat roughly 15 minutes later. Defendant moved for summary judgment on the grounds that it lacked notice of the allegedly hazardous condition, and the trial court denied the motion.

The First Department unanimously upheld the trial court’s ruling, holding that defendant had failed to establish that it lacked constructive notice of the slippery condition in its lobby. While defendant submitted testimony from both the porter on duty the night of plaintiff’s fall and a theater manager, both of whom testified at length regarding the theater’s policies and procedures for keeping the theater clean and free of pooled water, neither witness testified as to what the theater had done to inspect and clean pooled water on the night of plaintiff’s injury. The First Department concluded that without specific evidence of what the theater had done on the night of plaintiff’s injury, defendant could not establish a lack of notice of slipping hazards – particularly given the plaintiff’s testimony regarding the notice he had given the usher. Thus, the court concluded the plaintiff had presented a question for the factfinder about whether his warning to the usher 15 minutes before his fall was sufficient to give defendant notice of the slippery condition and time to remedy it.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at .